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July 27, 2011

Last month, the Court of Appeals decided an important new case clarifying the difference between the mens rea of depraved indifference and reckless. In People v. Lewie (Ct. App. 6/9/2011) (Smith, J.) (5-2), the Defendant was found guilty of both Manslaughter 2º and Reckless Endangerment 1º; implicitly, therefore, the jury believed that she acted both recklessly and with depraved indifference in the death of her son.

At trial, the People's theory was that the Defendant's boyfriend killed her son. They charged two counts of Manslaughter 2º: one on an omission theory that the Defendant knew her son had suffered injuries but did not seek help and another on a negligent entrustment theory: that in the last 45 days of her son's life, she knew she was putting him in danger but leaving him in the care of the boyfriend. She was also charged with Reckless Endangerment 1º and Endangering the Welfare of a Child. The Appellate Division reversed on the first theory of Manslaughter 2º but otherwise affirmed. The Court of Appeals affirmed the conviction for Manslaughter 2º (under the second theory) but reversed on Reckless Endangerment 1º. "As to both counts, the critical question is what the evidence shows as to defendant's state of mind when, over a period of six weeks, she repeatedly left her baby with the man who abused and eventually killed him."

The majority found abundant evidence to prove recklessness. "We conclude that the evidence is sufficient to support the jury's finding that defendant knew such a risk existed. The evidence shows that defendant knew, or at least believed it possible, that Flint [the boyfriend] was hitting, shaking and biting her child. She knew that he was capable of inflicting significant injury on an adult, herself. She believed him capable of killing a small animal in a rage. She was worried enough to tell Flint that, if he was angry, he should 'shake a teddy bear, not Colbi.' Yet, she left Colbi with Flint again and again — even after she saw, on November 12 and 13, that Colbi had been seriously hurt."

Curiously, the People did not charge Murder 2º under a Depraved Indifference theory, even though they charged Reckless Endangerment 1º, which requires the same mens rea, and there was a death. The majority explains this as an exercise of "prosecutorial discretion." In any event, it found evidence of the mental state lacking. First, it noted the distinction between reckless and depraved indifference, pointing out that "depraved" does not necessarily mean what most people think it does. "The distinction between conscious disregard of a known risk to human life (required for a reckless manslaughter conviction) and depraved indifference to human life (required for a depraved indifference murder or first degree reckless endangerment conviction) can be hard to grasp, especially in a disturbing case like this one. Consciously to disregard a substantial risk to the life of one's own child — as the jury found, on legally sufficient evidence, this defendant did — is shocking behavior, and in ordinary speech people might call it 'depraved.' But 'depraved indifference to human life,' as used in the murder and reckless endangerment statutes, is something even worse ... [A] person who is depravedly indifferent is not just willing to take a grossly unreasonable risk to human life — that person does not care how the risk turns out."

Here, the Defendant was aware of the risk that her boyfriend might harm her son, but she was not indifferent to it. She did care and worry that something bad might happen. "Some of the evidence most damaging to defendant on the manslaughter count is actually favorable to her on the depraved indifference issue. Thus her statement that she 'was scared' and 'never knew what she was going to come home to' shows that she was fearful of harm to her baby, not that she was indifferent to the possibility. And in telling Flint to 'shake the teddy bear instead of Colbi,' she was trying, however weakly and ineffectively, to protect the child." (LC)

July 22, 2011

"Interest of justice" is used in a couple of places in the CPL. One is for a dismissal of an accusatory instrument at the trial level. The test is well established and there is abundant case law explaining when a trial court should and should not grant a motion to dismiss in the interest of justice.

There is another mention of the term in the CPL: Intermediate appellate courts (Appellate Division, Appellate Term, County Court)—but not the Court of Appeals except in death penalty cases—can reverse or modify a judgment in the interest of justice. This allows the courts to reverse or modify for unpreserved questions and to reduce a sentence that is lawful but excessive. Unfortunately, there is little guidance for courts to determine whether to exercise this discretion.

In a recent article, I explored the interplay of preservation and "interest of justice" jurisdiction. I compare the federal and state standards and offer a test for courts to apply. The article can be downloaded from my SSRN page. (LC)

In People v. Johnson (Ct. App. 6/9/2011), a unanimous Court of Appeals—in a memorandum decision—reversed a defendant's conviction because of an error in jury selection. The Defendant raised the insanity defense. One of the prospective jurors said she wrote a college term paper on the insanity defense. During subsequent questioning, she said that she was not sure if she could give both sides a fair trial and that she might be biased against the defense. The Defendant exercised a peremptory challenge.

The court reversed because the trial judge should have conducted a further inquiry and either obtain an unequivocal assurance of fairness or excuse the juror for cause. "Here, given the absence of follow-up questioning by the court after the juror expressed uncertainty concerning her ability to fairly consider a major issue in this case, the conviction must be reversed and the matter remitted for a new trial."

July 18, 2011

While trial courts have wide latitude in controlling the tempo and timing of voir dire, that discretion is not absolute. In People v. Steward (Ct. App. 6/7/2011) (Graffeo, J.) (5-2), the Court of Appeals held that the trial court abused its discretion by only permitting five minutes of questioning per round of voir dire.

The case stemmed from a robbery of a well known DJ. Prior to jury selection, the trial judge informed the parties that they would each be given five minutes per round of voir dire. The Defendant objected to the time limit during the first round of jury selection but not during the subsequent rounds.

The relevant statute states, "Each party shall be afforded a fair opportunity to question the prospective jurors as to any unexplored matter affecting their qualifications, but the court shall not permit questioning that is repetitious or irrelevant, or questions as to a juror's knowledge of rules of law." (CPL § 270.15(c)) The court set forth a factors test to be applied in determining whether a particular time limit is reasonable:

It would be impossible to compile an exhaustive list of all the factors that might inform a trial court's determination of this issue. But, in most cases, relevant considerations would include: the number of jurors and alternate jurors to be selected and the number of peremptory challenges available to the parties; the number, nature and seriousness of the pending charges; any notoriety the case may have received in the media or local community; special considerations arising from the legal issues raised in the case, including anticipated defenses such as justification or a plea of not responsible by reason of mental disease or defect; any unique concerns emanating from the identity or characteristics of the defendant, the victim, the witnesses or counsel; and the extent to which the court will examine prospective jurors on relevant topics. Because voir dire is a fluid process and it is not always possible to anticipate the issues that may arise during examination of the venire, it is also incumbent on counsel to advise the court if any temporal limitation imposed relating to juror questioning is proving, in practice, to be unduly restrictive and prejudicial.

The five minutes imposed by the trial court in this case was shorter than the time limits previously upheld by the Court of Appeals. Moreover, the Defendant was facing four serious Class B felony charges as well as other felonies. The victim was a celebrity and many of the prospective jurors had heard of him. The case also raised sensistive questions about self-help, as the victim had pursued his assailants after the robbery was completed.

The question of prejudice was made difficult by the record, which referred to each venireperson only as "prospective juror" and entire groups of prospective jurors were excused sua sponte. "[H]ere, due to peculiarities in the record, it is impossible to contradict the contention that the problematic prospective jurors that counsel was unable to examine ultimately sat on the jury that convicted him of multiple class B violent felonies."

July 14, 2011

Last month, the Court of Appeals decided an interesting case on the indelible right to counsel, People v. Pacquette (Ct. App. 6/7/2011) (Read, J.) (5-2). The Defendant was suspected of a homicide in Brooklyn and he made inculpatory statements on that crime that he sought to have suppressed. The statements were made after the Defendant had been arraigned in Manhattan on drug charges. Brooklyn detectives had already put the Defendant in a lineup in Brooklyn and were sitting with him in Manhattan Criminal Court. The Defendant was ROR'd and was then arrested by the Brooklyn detectives. He then made the incriminating statements.

The question boiled down to whether the Defendant's attorney on the drug charge sufficiently communicated his involvement in the Brooklyn case such that the indelible right to counsel would have attached. The court looked at the conflicting testimony of the various participants, including the attorney and the detectives, and concluded that he had not. Specifically, the Defendant argued that his attorney's "neglect to 'specify' to the detectives whether he represented defendant in 'the drug case or the homicide case or both,' created an ambiguity causing the indelible right to counsel to attach." He argued that it at least warranted sending the case back for a further hearing.

The Court of Appeals disagreed, holding, "We have never held that an attorney may unilaterally create an attorney-client relationship in a criminal proceeding in this fashion, and decline to do so now. ... If he had said in open court that defendant 'was represented by counsel and that [the police] should not question him,' the prosecutor (or the judge) would have had the occasion and the opportunity to ask him flat out whether he was defendant's lawyer in the murder case, as the judge and the prosecutor later did at the Huntley hearing and the trial, respectively. Moreover, there is no ambiguity here, as there was in Ramos, about whether defendant may have intended to invoke his right to counsel before making the inculpatory statements."

The facts of the case are a bit convoluted, but the decision is worth a read if you have a right to counsel issue in a case. (LC)

July 11, 2011

In a short opinion in People v. Sirico (Ct. App. 6/7/2011) (6-1), the Court of Appeals affirmed that an intoxication charge to intentional murder is warranted only if there is evidence that the defendant's intoxication affected his ability to form an intent. Without going into detail, the majority, in an unsigned memorandum, held, "[T]here is insufficient evidence to support an inference that defendant was so intoxicated as to be unable to form the requisite criminal intent. Indeed, the uncontradicted record evidence, including defendant's own account, supports the conclusion that his overall behavior on the day of the incident was purposeful."

Judge Jones, in dissent, argued that the Defendant had presented sufficient evidence to at least warrant an intoxication charge.

The facts were bizarre, to say the least, if only because of the Defendant's choice of weapon. After consuming two large glasses of whiskey and one Xanax, the Defendant retrieved a bow and began launching arrows. One hit a car and the other fatally wounded a neighbor. The Defendant also threatened others with the bow-and-arrows. The People contended that the Defendant's outrageous behavior was caused by "an issue with the mechanism of his prosthetic leg" and not intoxication. Judge Jones noted that it was for the jury to determine which of the two stories it believed. (LC)

July 07, 2011

Last week, I blogged about People v. Osorio (NYC Crim. Ct. 6/21/2011) (Sciarrino, J.), in which the Criminal Court dismissed an accusatory instrument charging the Defendant with Promoting Prison Contraband 2º because Central Booking, which is operated by the police department, is not a "detention facility." The Defendant was caught handing marijuana to another arrestee in Manhattan Central Booking.

I am thinking that there was an alternative basis for dismissal. Penal Law § 15.10 requires, for every crime, the commission of a "voluntary act" or a legally culpable omission. Here, I think a strong argument could be made that there was not a voluntary act. The People's theory for PPC 2º must have been that the Defendant "introduced" marijuana by bringing it into Central Booking.

But, importantly, the Defendant did not enter Central Booking voluntarily. He was brought by the police. While the underlying marijuana possession was illegal (no matter where it occurred), I do not think he could be charged with Promoting Prison Contraband—which depends on the possession being committed in a particular location—when the Defendant was forced into that location. See Martin v. State, 31 Ala. App. 334 (1944) (police push drunk individual onto street and then arrest him for Public Intoxication; held, no voluntary act).

(It is unclear from the accusatory instrument quoted in the court's opinion, but I read the opinion as saying that the Defendant was already in Central booking when the handoff occurred. If this was not the case, and the Defendant was on the outside of the facility or holding pen, then my voluntariness argument would not prevail.) (LC)